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"was found wholly objectionable by all the managers on the part of the House." See H. (Conf.) Rept. 677, 78th Cong., 1st sess., p. 4 and 89 Cong. Rec. 7385– 7386. In adopting section 9, Congress seems to have recognized that authorizing legislation does not compel the executive branch to obligate or to expend highway funds.
There is nothing in Title 23 of the United States Code which imposes upon the executive branch the duty to approve all qualifying projects for which appropriated funds are available.
A. 23 U.S.C. 118, which provides that apportioned funds "shall be available for expenditure under the provisions of this title," does not give the States any inchoate right to the apportioned funds. The gist of this section is that apportioned funds are available for obligation (see note 2, supra) for a period of two years after the end of the fiscal year for which the sums are authorized. It does not mean that the Secretary must approve all projects which comply with the technical requirements of 23 U.S.C. 109 as soon as funds are apportioned. Such interpretation of the statute would be inconsistent with the pay-as-you-go principle underlying the Federal-aid highway program. Thus, when it appears that the balance in the Highway Trust Fund is or will be less than the sums apportioned among the States on the basis of the authorizations contained in section 108(b) of the Federal-Aid Highway Act of 1956, as amended, the Secretary must limit the approvals of projects under 23 U.S.C. 106(a) to a figure within the sums estimated to be actually "available for expenditure." 5
It is not consistent with this approach to contend that the States have vested rights in the funds apportioned prior to the actual approval of projects under 23 U.S.C. 106(a). It is approval of a project under that section which constitutes the contractual obligation of the United States. No provision of the act gives any State a vested right to the apportioned funds prior to such approval.
B. I am aware of 23 U.S.C. 101(b), in which Congress declared that it is in the national interest to accelerate the construction of the Federal-aid highway systems; that the prompt and early completion of the National System of Interstate and Defense Highways is essential to the national interest: and that it is the intent of Congress that the Interstate system be completed as nearly as practicable over the period of availability of the fifteen years' appropriations (through the fiscal year ending June 30, 1972) to which the section refers. I do not consider that these policy declarations contain any mandate which is inconsistent with the deferral on the approval of Federalaid highway projects involved here,
23 U.S.C. 101 (b) does not use any mandatory language. It is well-established that such statements of policy do not add to or alter specific operative provisions of a statute. Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 202 (1962); Lauf v. E. G. Shinner & Co., 303 U.S. 323, 330 (1938); Price v. Forrest, 173 U.S. 410, 427 (1899); Sutherland, Statutory Construction (3d Ed., 1943), section 4820. Language of this type is a form of congressional guidance and not a directive. It reflects congressional understanding that during the course of a long-range program, situations may arise in which the stated considerations of policy might not be decisive. See 37 Op. A.G. 546, 548 : 42 Op. A.G. No. 15, pp. 8-9 (October 9, 1963); id. No. 20, p. 3 (April 26, 1965).
The choice by Congress of hortatory language in 23 U.S.C. 101 (b) also seems to be indicative of its awareness of the point stressed by President Roosevelt to the effect that there are many programs and activities, especially in times of rapid changes in general economic conditions, in which it is impossible to prescribe exact statutory standards and levels of operation.
Moreover, since the purpose of action here is not to reduce the total amount of the funds to be devoted to the Federal-aid highway program but merely to slow the program for a limited period, hopefully it will have no adverse effect on the completion of the program "as nearly as practicable" by the end of the period envisaged in 23 U.S.C. 101 (b).
C. It has been suggested that the highway taxes imposed by the Highway Revenue Act of 1956 are paid into the Highway Trust Fund established by section 209 of that act, and that the executive branch therefore has the fiduciary duty to proceed with the construction of highways to the full extent permitted by the assets in that Fund.
5 Congress is well aware of this "reimbursement planning" or "contract control" nro. cedure See e.o.. S. Rept. 203. 86th Cong.. 1st sess.. p. 25 (Minority views): 113 Cong. Rec H1023 ( nnlly EA., February 6. 1967).
Tinner 22 U.S.C. 118(b) apnortioned funds remain available for two years after the close of the fiscal rear for which authorized.
As noted above, the proceeds of the highway taxes are not paid directly into the Fund; Congress merely has appropriated into the Fund amounts equivalent to specified percentages of certain taxes received in the Treasury. The assets in the Fund are neither directly nor automatically available for the payment of the Federal contributions to the States. The disbursements out of the Fund require appropriations under section 209(f), and such appropriations cannot exceed the authorizations provided for the Federal-aid highway program.
The Highway Trust Fund thus is, in effect, a device designed to identify an amount equivalent to certain designated taxes as a ceiling on the sums available for highway construction. As indicated above, appropriations for Federal-aid highways are subject to a double limitation: they may not exceed the Federal-aid highway authorizations, nor the amount available in the Fund. As a limitation on the sums which may be spent under the Federal-aid highway legislation, the Fund is functionally akin to the conventional appropriation and, as such, it constitutes an authority rather than a mandate. While the executive branch has normally expended substantially all the monies made available by appropriations, there is no duty to spend the entire amount that is available. In the instant situation, the Executive has determined that project approvals should be limited during the current fiscal year so as to reduce the prospective level of expenditures from the Highway Trust Fund. This is a determination which the Executive is fully empowered to make.
I conclude that the recent limitation on the Federal-aid highway funds which may be obligated during the current fiscal year was a valid exercise of Executive authority. Sincerely,
Acting Attorney General. Exhibit 4
U.S. DEPARTMENT OF COMMERCE,
BUREAU OF PUBLIC ROADS,
Washington, D.C., November 23, 1966. INSTRUCTIONAL MEMORANDUM 30–7–66, 34-01 Subject: Limitation on Federal-aid highway obligations during fiscal year
1967. In recognition of the need for reducing non-military Federal expenditures as a contribution to the Vietnam effort and the resultant program to reduce inflationary pressures, the Federal-aid highway program is to be limited to $3300 million in total project obligations which can be incurred during fiscal year 1967. It is also anticipated at this date that this rate of obligations will continue into at least the first quarter of fiscal year 1968.
Actual obligations have totaled $1,056,725,000 from July 1 through October 81, 1966 thus leaving a balance available for the 8-month period November 1. 1966 through June 30, 1967, of $2,243,275,000. Funds are obligated when the States are authorized to proceed with HPR projects and with preliminary engineering, acquisition of rights-of-way, and advertising for bids on construction projects.
It is therefore planned that reimbursable obligation releases totaling $3300 million will be issued to cover the fiscal year 1967. The schedule of releases is to be as follows:
( million dollars) Actual to Nov. 15, 1966: July 11, 1966--
- 1 $900 Oct. 7, 1966.--
-- 1900 Proposed: Jan. 1, 1967..
750 Apr. 1, 1967.---
750 Total, fiscal year 1967.--
--- 3, 300 | $1.0 billion total release less 10 percent holdback which remains in effect.
The enclosed table shows the amount of Federal-aid highway funds which may be obligated by each of the States during fiscal year 1967. The amounts shown in this table are controlling with respect to total obligations during fiscal year 1967, notwithstanding carryover balances of previously released funds available for reimbursable obligations at the beginning of the fiscal year or as of November 1, 1966. This means in effect that balances from previous quarterly release schedules are available only for incurring obligations in amounts not to exceed each State's share of $3300 million as shown in the enclosed table. They cannot be added to the amounts shown in the enclosed table, which amounts represent the total obligations which can be created during fiscal year 1967 regardless of what other releases may have been made and the balances remaining therefrom.
R. M. WHITTON, Federal Highway Administrator.
U.S. DEPARTMENT OF COMMERCE-BUREAU OF PUBLIC ROADS, LIMITATION ON FEDERAL-AID HIGHWAY
OBLIGATIONS, FISCAL YEAR 1967
(In thousands of dollars)
through October 31,
through June 30,
15,421 80, 363 39, 640 171, 445 40. 881 19, 780 183. 778 40, 415 51.121 153, 242 17, 913
42,117 42,450 54,591 61, 257 29, 046 67,079 25, 182 16, 334 19, 321 11.407 56, 481
36,621 171, 262 34, 344 13,722 90,548 32. 797 35, 571 88, 217
7.067 18, 600 17,856 42, 423 111, 808 29. 809
9, 157 46, 199 41, 155 57, 876 32, 749 19, 646 7.918 4, 890
U.S. INFORMATION AGENCY,
OFFICE OF THE DIRECTOR,
Washington, February 27, 1969. Hon. SAM J. ERVIN, Jr., Chairman, Subcommittee on Separation of Powers, U.S. Senate,
DEAR SENATOR ERVIN: In response to your letter of February 5, we have reviewed appropriation and apportionment records since August 1953, when the U.S. Information Agency was established. There appear to be no instances of the impoundment of funds by the Bureau of the Budget or the President of the types described in your letter.
In 1951 funds were appropriated for construction of certain radio facilities for the Voice of America, both in the United States and overseas. Progress on the two projects in the U.S. was suspended by the President in 1953, pending evaluation of engineering and propagation characteristics. Subsequently both projects were cancelled. Bilateral agreements for the location of the overseas plants were nevr negotiated, and these projects were also cancelled. Transmitters and other equipment purchased for these facilities have since been used in later projects. Funds remaining were applied to other radio construction needs or transferred to other appropriations, by action of the Appropriations Committees.
More recently, the Agency completed construction of a new radio plant in Thailand, realizing a net saving of $800,000. The Agency has requested the approval of the Bureau of the Budget for using these moneys to construct additional antennas at the transmitter station in Dixon, California. In line with the recent (and current) budgetary restraints, the Bureau has required that the $800,000 be reserved for use in 1970 for maintenance and engineering research requirements in the VOA system.
These two instances represent the only actions of record involving USIA funds. While I do not believe they are quite of the type described in your letter, I am reporting them in the event that you wish them to be considered. Sincerely,
Washington, D.C., March 5, 1969.
DEAR MR. CHAIRMAN: I am pleased to report to you and members of your Subcommittee, as requested in your letter of February 5, 1969, concerning instances since 1945 that the Bureau of the Budget in the name of the President, impounded or froze funds appropriated to the Veterans Administration by the Congress.
We have researched this subject, as you were informed by our Controller in his letter of February 14, 1969, acknowledging your request. Some dithi culties were encountered, however, with respect to the availability of detailed data extending back to 1945, and we are not certain that the financial records retained for more than five years back provide sufficient detail to enable us to report every instance which might technically qualify under the criteria set forth in your letter.
We have listed in the accompanying enclosure those instances which at the time represented decisions not to utilize Congressionally authorized funds which could be described as being imposed by higher authority on the Veterans Administration.
Our research discloses few instances of initial disagreement with the Banreau of the Budget as to the amount of an appropriation that should be made available for obligation that wasn't resolved before the year ended. Every year, I'm sure, there have been differences of opinion between the Bureau and the Agency as to what share of the Nation's resourcs should be devoted to veteran benefit programs. The Agency's views have not always prevailed and sometimes subsequent experience has shown that they shouldn't have. But. as the accompanying enclosure shows, the Executive Department has been highly responsive during the past twenty-four years to Congressional views with respect to appropriations for veteran benefit programs. In this connection, it may be of interest to note that Congress has authorized funding levels (appropriations, contract authority or borrowing authority) amounting to $135.3 billion since 1945, compared to the $241.9 million indicated by our records as having been reserved or frozen by the Bureau of the Budget under the criteria cited in your letter.
You may be sure the Veterans Administration will cooperate fully with you, your Subcommittee colleagues and staff in this matter. Please call on me or Mr. Shytle, VA Controller, for any additional information you may require Sincerely,
W. J. DRIVER, Administrator. EXHIBIT
INSTANCES SINCE 1945 THAT BUREAU OF THE BUDGET IMPROVED OR FROZE
FUNDS AUTHORIZED TO VETERANS ADMINISTRATION BY CONGRESS
FY 1949-Pursuant to a Presidential decision to curtail previously planned levels of hospital beds, the Bureau on January 31, 1949, directed Veterans Administration to place in reserve $237,000,000 of Congressionally authorized contract authority for the "Construction of Hospital and Domiciliary Facilities" appropriation. This authority finally lapsed on June 30, 1952.
FY 1952-On June 9, 1952, the Bureau reserved for saving $4,000,000 of a $32,254,000 item in the “Third Supplemental Appropriation Act, 1952", enacted June 5, 1952, for pay raise purposes in the "Administration, Medical, Hospital and Domiciliary Services, Veterans Administration" appropriation. This reservation was related to lower employment levels being experienced than was contemplated in the appropriation request.
FY 1957—By Bureau of the Budget request, Veterans Administration agreed to place in reserve for saving $505,000 of the $20,773,800 appropriated under the heading “Medical Administration and Miscellaneous Operating Expenses". At that time the Agency's medical research activities were funded under this heading and the reservation action was related to the delay being experienced in recruiting planned highly skilled professional staff and specialized equipment.
FY 1960-By apportionment action on April 27, 1960, the Bureau reserved for saving $400,000 of a $2,000,000 supplemental amount appropriated to the “General Operating Expenses" heading in the "Second Supplemental Appropriation Act, 1960”, enacted on April 13, 1960. This action was based on the Bureau's determination that such savings could be generated through curtailment of employment and other operating costs.
FY 1968-Pursuant to the provisions of Public Law 90-218 providing continuing appropriations, the Bureau reserved a total of $29,470,000 from the following VA appropriations: Medical care..
$28, 082, 000 Medical and prosthetic research.----
1,077, 000 ------------------------------Medical Administration and Miscellaneous operating expenses.---- 311, 000
29, 470, 000 These amounts were subsequently released by Congress in Public Law 90–392 for application toward general pay raises provided by Congress.
FY 1969—Pursuant to the provisions of Public Law 70-364 relating to rolling back Government-wide employment to the June 30, 1966, level, the Bureau reserved a total of $15,529,000 from initial appropriations as follows: Medical care.-.
-- $15, 167, 000 Medical and prosthetic research.----
------------------------- . 362, 000 Total.----
------- 15, 529, 000 Requests are pending before Congress to release these reserves for application toward the general pay raises authorized by Congress.